The Supreme Court may be on the verge of enacting a standard to block (or at least limit) partisan gerrymandering for state legislatures. There’s just one problem: This “uniform” standard simply does not work for New York State. Or perhaps more ironic, the Supreme Court may choose not to adopt the standard for determining fairness in districting in the Wisconsin case before it now because it is not universal, because it doesn’t work for at least one state, our very gerrymandered Empire state.

New York State has a centuries-long tradition of partisan gerrymandering for its legislature. The 1894 Constitutional Convention cemented a redistricting process for the state’s Senate and Assembly that the great Democratic Governor Al Smith later said made the legislature “constitutionally Republican.” It was not until the U.S. Supreme Court one-person-one-vote decisions of the mid-1960s, 75 years later, that the door was open to a period of Democratic control of the Assembly; that dominance became firm in the famous Watergate election of 1974, and was entrenched in the decennial redistricting following the 1980 census. Meanwhile the Senate remained in GOP hands. And since then, until recently, largely as a result of bipartisan gerrymandering achieved by the collaboration (collusion?) of the partisan majorities in the two houses, New York has had divided control of its legislature, with the Democrats dominant in the Assembly and the Republicans in the Senate. 

A complex state constitutional amendment “reforming” the redistricting process in New York was adopted in November of 2014. There remains a good deal of skepticism, however, about its value in blocking gerrymandering, because it leaves the final word on district design with the Legislature. We will see its impact after 2020. 

Interestingly, even if Senate Democrats manage to patch up their differences, gain a majority and keep it through the redistricting following the 2020 census, it is likely that partisan gerrymandering will persist. Even the most reform minded members in a new Democratic Senate majority are likely to think “now it’s our turn.”

That is, unless the U.S. Supreme Court decides to change the rules. Until now, it has been reluctant. The court acknowledged in Davis v. Bandemer in 1986 that a partisan gerrymander might be so egregious that it would have to step in, but has as yet not found a case in which it was willing to do so. In addition to a reluctance to enter the “political thicket” the court has been concerned about identifying a clear, straightforward useable standard for fairness in districting that might be applied without generating massive amounts of litigation. See Vieth v. Jubelirer (2004).

Very good measures of districting bias devised by political scientists have as yet not found favor with the Supreme Court. Perhaps this is because Chief Justice John Roberts is not the only one on the high bench who regards political science as “sociological gobbledygook.” Yet Justice Kennedy, the swing vote, has said he’s interested in finding a standard, and in the Wisconsin case a relatively simple, intuitively appealing mathematical standard, called the “efficiency gap,” has been advanced to measure fairness in districting. The standard takes this name because it summarizes in one number the efficiency of a districting system for translating popular votes into legislative seats, based upon a “wasted votes” analysis.

Yet interestingly, there are at least three reasons why an historic decision made by the Supreme Court to limit partisan redistricting by applying the efficiency gap measure is likely to have little impact in New York. 

  • Calculations of the efficiency gap presumes two party competition. But New York’s near unique party system allows both major parties to run the same candidate. And minority parties abound, have a range of tactical choices and – not infrequently – are significant in determining outcomes. 
  • The efficiency gap measure presumes that the governorship and both legislative houses are controlled by a single party. (With divided party control, districts are adopted with the approval of both major parties.) This takes no account of New York’s decades-long practice of bipartisan gerrymandering. 
  • The efficiency gap formula does not work for New York, probably because of the massive imbalance between major party adherents in New York City. A comparative analysis done by researchers for the Wisconsin case showed that New York Assembly Districts for 2012 and 2014, gerrymandered by that house’s majority Democrats, had a significant pro-Republican bias! This was also true, they showed, for the redistricting done for the Assembly in the prior three decades. Of course, as noted, the Democrats in New York have been gerrymandering to keep firm control of the Assembly since 1980, and currently have 103 out of 150 seats in that body.

The bottom line: no matter what the U.S. Supreme Court decides, further state constitutional change is needed to assure neutral redistricting and maximize the possibility of fair, competitive elections.